SOHAN SINGH RAM SINGH Vs. HANS RAJ

JUDGEMENT

(1.) This appeal under clause 10 of the Letters Patent raises the question whether the proceedings before the Court of the 29th June 1950 can be regarded as "hearing" within the meaning of rule 6 of Order 9 of the Code of Civil Procedure.

(2.) The facts of the case are simple and not in dispute. On the 3rd August 1949 Sohan Singh and Gopi Nath brought an action for dissolution of partnership and rendition of accounts against defendants, Nos. 1 to 9 and on 29-4-1950 they obtained a preliminary decree against them. One Nathu Lal was appointed a local commissioner to examine the accounts of the partnership and to determine the liability of each of the several partners in accordance with the terms of the preliminary decree. The commissioner was to submit his report on the 25th May 1950, but he was unable to do so and was eventually permitted to present it on the 29th June 1950. The report was duly presented on that day. Defendants Nos. 2 to 9 were absent but the counsel for the plaintiffs and the Mukhtar of defendant No.1, who were present in Court, accepted the report, and the Court accordingly passed the final decree in accordance with the terms of the report.

(3.) Hans Raj defendant No. 3 was dissatisfied with ex parte order which was passed against him and presented an application under rule 13 of Order 9 of the Code of Civil Procedure for the setting aside of the ex parte decree on the ground that he was prevented by sufficient cause from appearing in Court on the 29th June 1950. The trial Court dismissed the application, but the learned Single Judge to whom an appeal was preferred came to a contrary conclusion. He held that although an ex parte preliminary decree had been passed against Hans Raj and although he had not applied for the setting aside of that decree, it was not open to the trial Court to pass the final decree on a date which was not a date for the hearing of the suit, particularly when Hasn Raj had taken an active part in the enquiry before the commissioner. The learned Single Judge accordingly allowed the appeal, set aside the order of the trial Court and remanded the case to the trial Court with the direction that it should proceed from the stage at which the report of the local commissioner was filed. The plaintiffs have appealed, and the question for this Court is whether the learned Single Judge has come to a correct determination in point of law.